Wednesday, December 27, 2006

In January 2006, her senior year at Anderson County High School in Tennessee, Ambrea Phillips enrolled in the weightlifing and conditioning class regularly offered by her school. After a couple of days, she was notified that she would not be allowed to participate in the class because Principle Bob McCracken feared that in a class of large, strong guys, she might be at risk for sexual assault. To fill the then-unscheduled period, Phillips was assigned to work as an office assistant in the guidance office. Three school days later, however, McCracken let Phillips back into weightlifting class after the state attorney reminded him about Title IX.

Phillips sued the school board for damages for the emotional and physical distress that she suffered as a result of her temporary suspension. But on December 19, following a hearing, a magistrate judge in the federal district court for the Eastern District of Tennessee granted the School Board's motion for summary judgment. 2006 WL 3759893. Essentially, Phillips's case fell short for failing to allege that the defendant school board knew about and was indifferent to McCracken's decision to exclude Phillips from the class, and thus cannot be liable for his actions.

Had the decision to exclude Phillips from weightlifting been the school board's rather than the principal's, however, it would have constituted sex discrimination within the scope of Title IX:

While Dr. McCracken's concerns may have been well-intentioned, there does not appear on the record to be any objectively reasonable basis for his concerns. There is no evidence in the record of prior student-on-student sexual harassment or sexual assaults during the weightlifting and conditioning class, nor is there any evidence of any misconduct or inappropriate activity on the part of this particular teacher. Accordingly, while there may have been a possibility of a sexual assault occurring, it cannot be said that this possibility was any more likely in this class than in any other class where both male and female students are present. Accordingly, the Court finds that the plaintiff's removal from the weightlifting and conditioning class was unwarranted and discriminatory.

If I had been the judge, I would have also emphasized that the appropriate remedy for school harassment is to punish, remove, or supervise the (potential) perpetetrators, not the (potential) victim. And I would have pointed out the patriarchal paradox in McCracken's rationale: The strength disparity that makes men physically capable of assaulting and raping women is ensured when men have access to weighlifting and women are excluded. If McCracken's concern for Phillips as a potential rape victim justified anyone's exclusion from the class, it certain was not Phillips's.